End of the simplified procedure for temporary unemployment due to force majeure resulting from the COVID-19 pandemic or the war in Ukraine
24 Jun 2022
After several extensions of the simplified procedure for temporary unemployment due to force majeure resulting from the COVID-19 pandemic or the war in Ukraine, the government decided not to further extend this system beyond 30 June 2022.
This means that, as of 1 July 2022, the general – and more burdensome – rules on temporary unemployment due to lack of work resulting from economic reasons (or ‘temporary unemployment for economic reasons) and temporary unemployment due to force majeure will apply again. However, with respect to temporary unemployment for economic reasons, several transitional measures – relaxing some of its stringent conditions – were introduced, which will apply until 31 December 2022. These transitional measures will enable companies that are currently using the simplified procedure for temporary unemployment due to force majeure to transition to temporary unemployment due to economic reasons more smoothly.
Temporary unemployment for economic reasons – white-collar workers
If confronted with a lack of work resulting from economic reasons, a company can use this type of temporary unemployment for its white-collar workers if the company classifies as an undertaking in difficulties and if there’s a legal basis that provides for this possibility. This means that there has to be:
either an industry-level or company-level collective bargaining agreement (CBA) on this topic; or
a company plan, which must be submitted for approval to the FPS Employment, Labour and Social Dialogue.
Companies where no industry - or company-level CBA, nor a company plan in this respect is applicable, can use CBA no. 159 as a legal basis for temporary unemployment for economic reasons resulting from the COVID-19 pandemic. This CBA, which is the successor of CBAs no. 147 and 148, was concluded by the National Labour Council to avoid dismissals as a result of the COVID-19 pandemic as much as possible, by more easily opening up the system of temporary unemployment for economic reasons for companies where no CBA or company plan is applicable in this respect. CBA no. 159 is applicable as of 1 January 2022 and is set to expire on 30 June 2023.
The general preliminary conditions and procedure for introducing temporary unemployment due to economic reasons for white-collar workers will fully apply. However, as mentioned above, a number of transitional measures are applicable in this respect. More specifically, the usual conditions and procedure are temporarily adjusted as follows:
The requirements to classify as a company in difficulties are relaxed:
if the company invokes a substantial decrease in turnover, production or orders of at least 10%, it is allowed to compare one of the four quarters quarter preceding the filing of the application for temporary unemployment with the corresponding quarter in 2019 to demonstrate this (instead of only with the corresponding quarter of the two preceding calendar years);
if the company invokes a 10% temporary employment, the days of temporary unemployment due to force majeure resulting from the COVID-19 pandemic or the war in Ukraine will also be taken into account in this respect (instead of only the days of temporary unemployment for economic reasons);
In order to prove these (relaxed) requirements, a specific specific C106A transitional application form (applicable as of 1 June 2022) must be filed with the NEO or FPS Employment, Labour and Social Dialogue at least 14 days prior to the first notification of temporary unemployment, but the authorities are showing some leniency in this regard;
Before the actual start of the temporary unemployment, the employer must notify the NEO, as well as the individual employees, of the planned temporary unemployment, at least 3 calendar days prior to the first day of temporary unemployment (instead of the usual 7 calendar days – relaxation applicable as of 1 June 2022). In addition – and within the same timeframe – the employer has to communicate the economic reasons warranting the introduction of temporary unemployment to the works council or union delegation.
Temporary unemployment for economic reasons – blue-collar workers
If a company wants to use the system of temporary unemployment due to lack of work as a result of economic reasons to fully or partially suspend the employment agreements of its blue-collar workers, the normal conditions and procedure will again be fully applicable as of 1 July 2022. However, two transitional measures will be applicable until 31 December 2022 in this respect.
The first one concerns the timing in which the employer must notify the NEO, the individual employees and the works council on the temporary unemployment. Instead of the usual 7 calendar days, this has to be done at least 3 calendar days prior to the first day of temporary unemployment.
The second transitional measure concerns the application of the maximum duration for a continuous period of temporary unemployment. In principle, once this maximum is reached – which is 4 weeks of full time suspension of the employment agreement or 3 months of partial suspension –, employers are required to introduce a full working week before being able to start a new period of temporary unemployment for the employee in question. However, for continuous periods of full time temporary unemployment, the following transitional measures are applicable until 31 December 2022:
The employer may introduce one working week after a continuous period of temporary unemployment of 4 weeks;
The employer may introduce two working weeks after a continuous period of temporary unemployment of 8 weeks;
The employer may introduce three working weeks after a continuous period of temporary unemployment of 12 weeks.
Temporary unemployment due to force majeure
As of 1 July 2022, the default procedure for temporary unemployment due to force majeure will again be applicable. Note that, even though the simplified procedure for temporary unemployment due to force majeure resulting from the COVID-19 pandemic will no longer apply, the pandemic can still result in a situation that warrants the application of the default system of temporary unemployment due to force majeure. For example, temporary unemployment due to force majeure can be applied for an employee who’s not incapacitated for work but who has to remain in quarantine and whose position makes teleworking impossible.
Unemployment benefits
During periods of temporary unemployment, no salary is due by the employer and the employee in question will receive unemployment benefits. As of 1 July 2022, the unemployment benefits in each of the above systems of temporary unemployment will amount to 65% of the capped gross salary once more (instead of the 70% that’s currently applicable). In addition, blue-collar and white-collar workers are entitled to a supplement, paid by their employer or a Subsistence Fund, for each day of temporary unemployment due to economic reasons. However, contrary to what was applicable for the simplified procedure temporary unemployment due to force majeure resulting from the COVID-19 pandemic, no more supplement will be paid by the NEO for days of temporary unemployment due to force majeure as of 1 July 2022.
The withholding tax rate will increase again, from 15% to the usual 26,75%.
Conclusion
The simplified procedure of temporary unemployment due to force majeure resulting from the COVID-19 pandemic or the war in Ukraine will end on 30 June 2022.
Consequently, employers need to bear in mind that the usual, more stringent, conditions for temporary unemployment for economic reasons and temporary unemployment due to force majeure will be applicable once more, making access to the system of temporary unemployment more difficult than it has been over the last two years. However, several transitional measures are put in place – applicable until 31 December 2022 – to relax some of those stringent conditions.
If you have any questions regarding the above or require assistance to transition from the simplified system of temporary unemployment due to force majeure resulting from the COVID-19 pandemic to one of the default systems, don’t hesitate to reach out; we’d love to hear from you.
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